For the defendant-appellant-petitioner there were briefs
and oral argument by Stephen E. Mays,
Mays Law Office, LLC, Middleton.

For the plaintiff-respondent the
cause was argued by Warren D. Weinstein,
assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

2011
WI 8

notice

This opinion is subject to
further editing and modification.The
final version will appear in the bound volume of the official reports.

No.2008AP1296-CR

(L.C. No.

2005CF119)

STATE OF WISCONSIN:

IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,

v.

Janet A. Conner,

Defendant-Appellant-Petitioner.

FILED

FEB 9, 2011

A. John Voelker

Acting Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals.Affirmed.

¶1N. PATRICK CROOKS, J. This is a review of a
published court of appeals opinion[1]
that affirmed the conviction of Janet Conner for aggravated stalking.Conner appeals the conviction on the
following grounds: first, that the way the State charged, and was permitted to
prove, the elements of the stalking crime violated her constitutional due
process guarantee to notice, and second, that the stalking statute provision
under which her conviction was elevated from a Class I felony to a Class H
felony was incorrectly applied.The
questions presented are: 1) whether the charging documents were specific enough
to give Conner adequate notice of the alleged conduct constituting the
"course of conduct" element of the statute and 2) whether, in the
provision describing a Class H felony, the element requiring that the
"present violation" occur within seven years of a prior conviction is
satisfied where a single post-conviction incident, rather than a series of
acts, is alleged in the complaint and information.

¶2To make clear the issues we are deciding, we first set forth
important facts concerning the case.In
2005, Conner was charged in a complaint with two counts of stalking James and
Rhonda Gainor and one count of criminal damage to property.The charges were in connection with an
incident that occurred on the afternoon of November 30, 2005, when James Gainor
discovered that his truck, which was parked near the post office where he
worked, had been vandalized, with large deep scratches across the hood and
doors on both sides.Standing nearby was
Conner, a former girlfriend who had admittedly previously warned Gainor to be
careful where he parked his vehicles and had threatened to damage them; she had
also been convicted of other acts of harassment against him.He drew the obvious inference, and the two
had a heated exchange that ended with Conner cursing Gainor and leaving the scene.Conner was subsequently charged with two
counts of stalking with a previous conviction within seven years, in violation
of Wis. Stat. § 940.32(2)
and (2m)(b)(2003-04),[2]
and one count of criminal damage to property in violation of Wis. Stat. § 943.01(1).(The previous conviction referenced in the
first charges was for 2003 convictions for three counts of violating a
harassment restraining order and two counts of unlawful use of a telephone, all
of which arose from acts in 2000 and 2001 that targeted the Gainors.)The case proceeded to trial before the
Circuit Court for RichlandCounty, the Hon.
Michael J. Rosborough presiding.After a
four-day trial, a jury convicted Conner of one count of stalking and acquitted
her on the other counts.

¶3Conner challenged the conviction on the grounds that she was not
given adequate notice of the allegations she would be defending against because
the information identified only a single incident on November 30, 2005, as the
basis of the charge and did not specify what two or more acts formed the
"course of conduct" element of the crime with which she was charged.She argued that after failing to allege a
factual basis for the course of conduct element, the State was then wrongly
permitted to prove the course of conduct element of the stalking charge using
evidence of acts that were not charged and evidence of acts for which Conner
was previously convicted.The State
responds that Conner had adequate notice of the allegations against her because
a complaint may properly incorporate by reference attached documents, as the
complaint in this case did.It
explicitly incorporated, among other attached documents, a filing from a
previous case that the complaint described as containing "a summary
recounting of some of the history of harassment and stalking perpetrated upon
[the Gainors] by Janet Conner as related by [the Gainors]."The document listed 27 dates on which
specific acts were alleged to have occurred.

¶4Conner also argued that the statute requires the State, in order
to show that the conduct was aggravated and constituted a Class H felony, to
allege and prove that a course of conduct consisting of two or more acts
occurred after the prior conviction, which in this case occurred in 2003, that
serves as the basis for the Class H felony designation.[3]At Conner's trial, the circuit court
permitted testimony concerning acts that occurred between 2000 and 2005.These acts were initially ruled admissible as
other-acts evidence but were later, at the jury instruction conference,
construed as admissible for proving the course of conduct element of the
stalking charges.Further, the State, in
closing, pointed the jury to the November 2005 incident and to two 2003
convictions as evidence to prove Conner's "course of conduct" with
regard to the Gainors.The State responds
that the chronological requirement of the statute is that the "present
violation" have occurred within seven years after the prior conviction and
that the "present violation" in this case is the conduct alleged in
the complaint, that is, the ongoing course of conduct including the November
30, 2005, incident, which did occur within the required time period.

¶5We consider Conner's due process challenge and employ a two-prong
test for evaluating the sufficiency of the charge[4]
that addresses constitutionally sufficient notice and exposure to double
jeopardy.The challenge here is focused
only on the first prong, that of sufficient notice.[5]In Wisconsin,
"[a] defendant has the benefit of both the factual allegations required in
the complaint and the final statutory charges alleged in the information."[6]It is also settled that a complaint may
appropriately incorporate other documents.[7]We hold that by appending and incorporating
into the complaint documents listing and specifying the dates of alleged acts,
both charged and uncharged, that began in 2000, and by alleging a "course
of conduct," the State gave Conner notice of the allegations she would be
required to defend against, and therefore there was no violation of Conner's
due process right to notice.

¶6As to the application of the statute's language requiring that
"the present violation" have occurred "within seven years after
the prior conviction," we hold that it was properly applied in this case
because in this case the "present violation" was a continuing course
of conduct that included the acts on November 30, 2005, and occurred within
seven years after the 2003 convictions for crimes involving the same
victim.Contrary to Conner's assertions,
the statute does not specify how many acts in that course of conduct must take
place after the prior conviction.Conner's reading is at odds with the context of the statute, which
defines stalking as acts "carried out over time, however short or long,
that show a continuity of purpose."[8]Further, the list of acts the statute defines
as stalking conduct[9]
makes clear that even if we read the statute as Conner suggests, the Class H
felony conviction in this case would still be proper because a properly
instructed jury could reasonably find that evidence showed that on November 30,
2005, Conner carried out more than one act constituting stalking behavior, and
those acts were within seven years after the 2003 conviction involving the same
victim.

¶7We therefore affirm the decision of the court of appeals.

I.
BACKGROUND

¶8This case is the second case to arise from the conflict that
Conner had with James Gainor that began shortly after their six-month
relationship ended in 2000.The
testimony of witnesses, including James Gainor and Rhonda Gainor, at the trial
detailed years of harassing incidents the Gainors experienced that had
escalated from what might initially be considered fairly minor annoyances to
disruptive and disturbing actions.At
one end of the spectrum were frequent prank phone calls in which the caller
hung up immediately, repeated instances when restaurant orders were falsely
placed in Gainor's name, and an occasion when the Gainors' wedding reception
reservation was cancelled by a caller claiming to speak for the Gainors.At the other were acts that caused serious
disruption in the Gainors' daily lives,
such as the occasion when a caller stranded James Gainor's stepson at
his elementary school by leaving a false message that he was to wait after
school to be picked up rather than taking the bus home.Others appeared calculated to cause panic or
distress, such as the occasion when a caller left a false message for Rhonda
Gainor purportedly from the school nurse that she needed to get to the hospital
urgently because her young son was there, and the occasion when a caller taunted
her by asking about a friend who had recently died unexpectedly.There were many magazines that arrived at the
Gainors' home, obtained by someone submitting bogus subscriptions.There was evidence of repeated personal
confrontations.There was evidence of a
range of damage to property, too, from the incident when Rhonda Gainor's coat
was smeared with nail polish while she had a dental appointment at the
dentist's office where Conner worked at the time to acts of vandalism to James
Gainor's vehicles. Gainor testified to
having arrived at his vehicles on various occasions to find that the
windshields had been shattered on two vehicles, that the paint on doors and
hoods had been extensively scratched or "keyed," that the air had
been let out of the tires, and that door locks on his car and truck had been
filled with a super glue-type substance.There was testimony that the harassing phone calls to phones at the
Gainors' home, places of work, school and family members' homes had been
unrelenting, with the only period of relief coinciding with a period of time
when Conner was in jail for other unrelated convictions.There was evidence presented that Conner
admitted some of the acts, denied some of the acts, and admitted others after
initially denying them.There was also
evidence of nine convictions between 1996 and 2001, several of which were for
similar conduct, such as damage to vehicles and harassing phone calls,
targeting the Gainors and other persons unrelated to this case.Conner testified; she denied all calls and
all damage to the Gainors' vehicles (even calls she had in previous proceedings
admitted), though she admitted keying a car in a separate unrelated incident as
revenge for having been wronged by a person related to the owner of the car.

¶9For purposes of analysis of the issues before us, there are
several key points on that timeline.In
2001, Conner was arrested and charged with violating a restraining order in
connection with harassing acts targeting the Gainors.That case is not directly before us, but it
is relevant here because a copy of a motion to admit evidence of other acts
filed in that case was appended to the complaint in the 2005 stalking case
against Conner.That document listed
numerous alleged acts of harassing conduct that occurred between July 2000 and
September 30, 2001, summarized in the State's brief as follows:

- James [Gainor] and Conner had been involved in a
brief relationship that ended in May 2000.

- James began seeing Rhonda Sugden in 2000.

- Conner began calling James in the first week of July,
2000.

- In October 2000, Rhonda began receiving calls from
Conner.

- Conner entered James' home on October 4, 2000, and
used his phone to call James, who was at Rhonda's home.

- On October 5, 2000, Conner and her sister came to
James's property and got into an argument with James. Conner followed Rhonda
around.

- On October 6, 2000, Conner came to Rhonda's place of
employment and gave her a letter containing accusations about James.

- In October and November, 2000, both James and Rhonda
received numerous prank calls; caller I.D. identified the calls as coming from
Conner's house and pay phones.

- Conner called Rhonda's daughter and mother numerous
times in November and December 2000.

- Conner called James during the first week of December
2000 and stated that she was going to cause problems with Rhonda when the
couple attended James's work Christmas party.

- Conner called Rhonda and repeated her threat to cause
problems at the Christmas party.

- During the first week of December 2000 James began
experiencing vandalism to his vehicle, including [finding that someone had]
flatten[ed] his tires.

- On December 15, 2000, James discovered the windshield
of his truck smashed.

- On December 25, 2000, Conner warned James to watch
where he parked [his car] so that Conner "won't be tempted to" do
something to it.

- On January 2, 2001, Conner called Rhonda's place of
employment twice claiming to be Rhonda's mother.

- On January 4, 2001, Conner called Rhonda's son's school
claiming to be Rhonda and told school officials to keep Rhonda's son off the
school bus because she would pick him up.When no one picked her son up, Rhonda had to leave work to pick him up.

- On January 24, 2001, someone called twice attempting
to cancel the reservation at the facility hosting [the Gainors'] wedding
reception.

- On January 24, 2001, someone called Rhonda's place of
employment; after finding out Rhonda was on jury duty, the person called the
Richland County Clerk of Court [falsely] claiming to be the school nurse and
informed the clerk that Rhonda needed to go to the emergency room as soon as
possible. Rhonda was excused from jury duty.

- On January 26, 2001, a man called Rhonda from a pay
phone Conner had previously used and threatened James.

- On January 26, 2001, James again discovered the
windshield of his vehicle smashed.

- James and Rhonda received numerous magazine
subscriptions they had not ordered, [and] received crank phone calls at work,
some from Conner's sister.

- On February 16, 2001, the circuit court enjoined
Conner from harassing James and Rhonda.

- On September 29, 2001, Conner barged into James's
residence and demanded he leave.

- On September 30, 2001, Conner called claiming to be
"Monica"; caller I.D. identified the call as coming from Conner's
sister's residence.

¶10In 2003, when that case went to trial, the jury convicted Conner of
three counts of violating a harassment restraining order.She also was convicted on a no contest plea
of two counts of unlawful use of a telephone.The judgments of conviction for those five counts were entered June 30
and August 7 of 2003.

¶11In 2005, Conner was charged in a complaint with two counts of
stalking and one count of criminal damage to property in connection with the
November 30, 2005, incident described above.The charges were two counts of stalking with a previous conviction
within seven years in violation of Wis. Stat. § 940.32(2m)(b) and one count of criminal damage to
property in violation of Wis. Stat. § 943.01(1).This is the case that gives rise to the
instant appeal.

¶12The timeline may also be helpful at the outset in sorting the
evidence at issue in this case into the following categories:

(1) There are the acts targeting the Gainors for which
Conner was charged in 2001, and of those, the ones for which she was ultimately
convicted (unlawful phone calls and violations of a harassment restraining
order).

(2) There were acts underlying prior convictions for
crimes targeting other victims.Of
those, the only acts we concern ourselves with are those the circuit court
permitted into evidence in this case.The circuit court permitted, as showing modus operandi, evidence of a
conviction for keying the vehicle of a person related to a person with whom
Conner was involved in a dispute.[10]The circuit court prohibited evidence of the
acts underlying the remainder of the convictions, though the fact of nine prior
convictions did come in during Conner's own testimony.

(3) There were acts of harassment prior to 2001 that
never resulted in charges.These
included prank calls, flattened tires on Gainor's vehicle, windshields
shattered on a truck and car, unauthorized entrance to Gainor's home by Conner,
threats to damage property, and the bogus magazine subscriptions sent to the
Gainor address.These acts were detailed
in the motion to admit other-acts evidence that was filed in a 2001 case, prior
to the instant case and recited above.

(4) There were other uncharged acts that the prosecutor
alleged Conner had done between 2001 and 2005, such as the dumping of a gallon
of paint on Gainor's truck, a vehicle scratched, spray paint sprayed on truck,
a car windshield smashed, locks on car and on truck vandalized with glue, car
scratched on both sides, and ongoing crank calls to home, work, and the school
Gainor's stepson attended.These acts
were testified to by the Gainors and other witnesses at trial.

(5) There are the acts alleged to have occurred on
November 30, 2005.This conduct was
detailed in the complaint dated December 7, 2005.In the police reports appended to the complaint,
the incident is described as happening in the midafternoon of November 30,
2005.James Gainor had left his vehicle
parked near his workplace, the RichlandCenter post office, with the intention
of having his wife pick him up after work to drive their son to a doctor's
appointment in Madison.When he came out of the post office that
afternoon, he noticed someone walking around his vehicle and then saw that the
vehicle had been scratched on every side, including the hood.He recognized that the person he had noticed
next to the truck was Conner and angrily shouted at her that he had seen her
scratching the truck.Conner had been
walking away from him, but turned to face him and angrily deny that he had seen
her do anything; she then went to her own car and drove away.Rhonda Gainor had driven up to pick up James
Gainor and witnessed the confrontation, as did Gainor's stepson.The Gainors called the police from a cell
phone, reported the incident, and then left to take their child to the doctor.The officer who responded to the scene
included in his report that the scratches had left a large quantity of paint
chips that he collected as evidence.He
also observed fresh footprints in the snow between the curb next to the truck
and the sidewalk.The Gainors later gave
additional statements to the police, as did Conner.

(6) There are acts alleged to have occurred starting
November 3, 2005, and continuing into mid-2006.These included multiple occasions of food orders placed at restaurants
in the Gainors' name, calls to Rhonda Gainor's parents' home, a call to Rhonda
Gainor's workplace, Wal-Mart, purporting to be Rhonda Gainor and notifying her
supervisor that she would not be reporting to work for two weeks, and a
taunting call to Rhonda Gainor at work inquiring about a friend who had died
that week.This evidence is described in
the State's other-acts evidence motion filed in this case.

¶13An understanding of the categories of acts is necessary to an
understanding of both of Conner's arguments.The first is that in violation of due process notice requirements, the
complaint and information charged stalking crimes that include an element of a
"course of conduct," i.e., "a series of two or more acts,"
yet a single incident on November 30, 2005 is listed as a factual basis for the
charges.Conner argues that she had no
notice of what specific acts she would be required to defend against as to
these charges.Further, the State then
was permitted to introduce acts from the first through fourth categories, both
convictions and uncharged acts, as other-acts evidence.Conner's argument, in other words, is that
evidence that might properly have been admitted as "other-acts
evidence" was essentially converted into evidence of an element of the
crime without those acts ever having been properly charged as such.

¶14The second of Conner's challenges concerns the question of which
category or categories of acts may be used to prove the "within seven
years after the prior conviction" element such that the crime becomes a
Class H felony.If the statute requires
that a new "course of conduct" must be proved after the 2003
conviction, then the conviction here was not properly obtained, Conner argues,
because in this case, the jury was directed to consider the 2003 convictions themselves
as fulfilling the course of conduct element for the present charge.Even though there were alleged acts from 2003
through 2005 that might, if proved, otherwise satisfy the requirement, those
acts were not charged.

¶15At the circuit court, Conner moved to dismiss the charges on the
grounds that the complaint failed to establish probable cause because the
single incident could not constitute a "course of conduct."The motion was denied.The State moved to introduce evidence of other
crimes, wrongs, or acts, pursuant to Wis. Stat. § 904.04(2)(a) (2005-06).[11]The motion sought to introduce evidence of
some uncharged conduct directed at the Gainors and their family and four prior
convictions for similar conduct.As
noted above, the circuit court permitted the introduction of the evidence
related to the Gainors and to the conviction for keying a vehicle in an
unrelated case.The jury heard three
days of testimony.The prosecution
presented the following witnesses in addition to the officers who investigated
the case: James and Rhonda Gainor both testified concerning the events of
November 30 and the history of events dating to 2000.Their young son, who witnessed the November
30 altercation, also testified.Rhonda
Gainor's daughter testified about the calls she had answered at her mother's
home during 2000 and 2001, stating that in some calls Conner identified herself
and in others she gave a different name, but that the voice had been
recognizably hers.Conner's probation
officer testified that Conner had given her a statement admitting keying Joy
Stoltz's vehicle in 2003.The IT manager
from Conner's previous employer testified that he had traced prank calls in
2001 at the request of the sheriff and had determined that they had come from
Conner's work phone.Stoltz testified
that she had seen Conner keying her vehicle in her driveway at night and then
fleeing before the police arrived.She
described "deep scratches all on [the] hood, all down the side and on
[the] trunk."

¶16Conner testified and presented witnesses including several family
members and an acquaintance, as well as the library director, and a payroll
custodian from the hospital where she worked who presented evidence that she
had not been clocked in on one day in 2003 when a call was allegedly made from
her work phone.The defense also, by
presenting a computer-generated video reenactment of the November 30 incident
and expert testimony about the reenactment, sought to prove that Conner could
not have been near the vehicle, and that the confrontation could not have
happened as the Gainors had testified it did.The jury returned a verdict of guilty on the count of stalking James
Gainor and verdicts of not guilty on the counts of criminal damage to property
and of stalking Rhonda Gainor.Conner
brought a motion for judgment notwithstanding the verdict, which was denied,
and then appealed the conviction.The
court of appeals affirmed the conviction.It reasoned that Conner's notice issue was without merit because the
information contained allegations corresponding to each of the elements of
stalking in the statute, satisfying the notice requirement, and that Conner's
challenge to the application of the statute was without merit because "the
final act charged, the keying of the Gainors' vehicle, occurred within seven
years of Conner's previous conviction." State v. Conner, 2009 WI
App 143, ¶19, 321 Wis.2d449, 775 N.W.2d105.

II.
STANDARD OF REVIEW

¶17Where the sufficiency of a pleading is challenged on constitutional
grounds, it presents a question of law that is reviewed without deference.State v. Chambers, 173 Wis.2d237, 251, 496 N.W.2d191 (Ct. App.
1992).The second issue in this case
requires interpreting a statute, Wis. Stat. § 940.32(2) and (2m)(b); statutory interpretation
presents a question of law, which this court reviews de novo.State v. Davis,
2008 WI 71, ¶18, 310 Wis.2d583, 751 N.W.2d332.

III.
ANALYSIS

¶18As already noted, there are two issues to resolve in this
case.They are 1) whether Conner
received constitutionally adequate notice of allegations relating to the course
of conduct element of the stalking statute and 2) whether, in the provision
describing a Class H felony, the element requiring that the "present
violation" occur within seven years of a prior conviction is satisfied
where a single post-conviction incident, rather than a series of acts, is
alleged in the complaint and information.

¶19Conner was convicted under Wis. Stat. § 940.32(2) and the conviction became a Class H
felony under Wis. Stat. § 940.32(2m)(b).Those provisions state:

(2) Whoever meets all of the following criteria is
guilty of a Class I felony:

(a) The actor intentionally engages in a course of
conduct directed at a specific person that would cause a reasonable person
under the same circumstances to suffer serious emotional distress or to fear
bodily injury to or the death of himself or herself or a member of his or her
family or household.

(b) The actor knows or should know that at least one of
the acts that constitute the course of conduct will cause the specific person
to suffer serious emotional distress or place the specific person in reasonable
fear of bodily injury to or the death of himself or herself or a member of his
or her family or household.

(c) The actor's acts cause the specific person to suffer
serious emotional distress or induce fear in the specific person of bodily
injury to or the death of himself or herself or a member of his or her family
or household.

...

(2m) Whoever violates sub. (2) is guilty of a Class H
felony if any of the following applies:

...

(b) The actor has a previous conviction for a crime,
the victim of that crime is the victim of the present violation of sub. (2),
and the present violation occurs within 7 years after the prior conviction.

Wis. Stat. § 940.32(2), (2m)(b).

Conner's challenges center on
the "course of conduct" element, as noted above.She argues that the State failed to allege a
course of conduct as to the charges and failed to allege a new course of
conduct following the 2003 convictions as is necessary to elevate the charges
to Class H felonies."Course of
conduct" is defined in Wis.
Stat. § 940.32(1)(a) as follows:

“Course of conduct” means a series of 2 or more
acts carried out over time, however short or long, that show a continuity of
purpose, including any of the following:

1. Maintaining a visual or physical proximity
to the victim.

2. Approaching or confronting the victim.

3. Appearing at the victim's workplace or
contacting the victim's employer or coworkers.

4. Appearing at the victim's home or contacting
the victim's neighbors.

5. Entering property owned, leased, or occupied
by the victim.

6. Contacting the victim by telephone or
causing the victim's telephone or any other person's telephone to ring
repeatedly or continuously, regardless of whether a conversation ensues.

6m. Photographing, videotaping, audiotaping,
or, through any other electronic means, monitoring or recording the activities
of the victim. This subdivision applies regardless of where the act occurs.

7. Sending material by any means to the victim
or, for the purpose of obtaining information about, disseminating information
about, or communicating with the victim, to a member of the victim's family or
household or an employer, coworker, or friend of the victim.

8. Placing an object on or delivering an object
to property owned, leased, or occupied by the victim.

9. Delivering an object to a member of the
victim's family or household or an employer, coworker, or friend of the victim
or placing an object on, or delivering an object to, property owned, leased, or
occupied by such a person with the intent that the object be delivered to the
victim.

10. Causing a person to engage in any of the acts
described in subds. 1. to 9.

A.
The due process notice claim

¶20The framework for analyzing a claim of inadequate notice of
charges, set forth in Holesome v. State, 40 Wis. 2d 95, 161 N.W.2d 283 (1968), was
discussed and put into its constitutional context in State v. George, 69
Wis.2d92, 230 N.W.2d253 (1975). The George
court first noted that "the scope of the state's latitude [with] respect
[to alleging with precision the time of the commission of a crime] is
restricted by due process and by art. I, sec. 7 of the Wisconsin Constitution
and the sixth amendment to the United States Constitution which guarantee to an
accused the right to be informed of 'the nature and cause of the
accusation.'" George, 69 Wis.
2d at 97.It then quoted the test from Holesome:

In order to determine the sufficiency of the charge,
two factors are considered. They are whether the accusation is such that the
defendant determine whether it states an offense to which he is able to plead
and prepare a defense and whether conviction or acquittal is a bar to another
prosecution for the same offense.

Id.

¶21Holesome,
in turn, cites its test as originating in several earlier cases including an
1863 case, Fink v. City of Milwaukee, 17 Wis.
26 (1863).Holesome, 40 Wis.2d at 102 n.2.In Fink, a defendant had been charged
with a violation of a city ordinance that created a fine for any person guilty
of intoxication, indecent exposure, obscene language, "loud, boisterous or
insulting language, tending to incite a breach of the peace," or
disorderly conduct.Fink, 17 Wis. at 28.As the Fink court noted in reversing
the judgment, "It will be seen that this ordinance provides for the
punishment of five distinct offenses, and it is utterly impossible to determine
from the complaint with which one the party was charged."Id.It was in this context that the test that
came to be known as the Holesome test was first set forth:

Now it is an elementary rule of criminal law, that...the facts and
circumstances which constitute the offense...must be stated with
such certainty and precision that the defendant may be enabled to judge whether
they constitute an indictable offense or not, in order that he may demur or
plead to the indictment accordingly, prepare his defense, and be able to plead
the conviction or acquittal in bar of another prosecution for the same offense."

Fink, 17 Wis. at 28-29.

In Fink, the charging
documents failed both prongs of the test because both the ordinance and the
charging document were imprecisely drafted.Id.The court also noted that the record would
not indicate for what specific offense the defendant would have been
convicted.Id. at 28.

¶22Conner concedes that she had sufficient notice as to the November
30 incident, and at oral argument conceded in response to questioning from the
court that a prosecution based on a theory that her conduct on that date
satisfied the "course of conduct" element would not be challengeable
on these grounds.She argues, however,
that as the case was actually tried and argued to the jury, she did not have
notice that certain evidence would ultimately be used to satisfy the course of
conduct element because the State was improperly allowed at trial to expand the
scope of the offense to a course of conduct spanning five years.[12]

¶23Conner argues that under the notice prong of the test, the facts of
this case parallel those of Kaufman, a case where the court of appeals
reversed a judgment because the State had charged an offense as having occurred
between two specified dates and then sought to treat the offense as a
continuing violation, introducing evidence from prior dates.State v. Kaufman,
188 Wis. 2d 485,
491-93, 525 N.W.2d 138 (Ct. App. 1994).The Kaufman court held that the State was "bound by
the time period specified in the information."Id.
at 493.Conner argues that Kaufman's
reasoning is applicable here and would bar any use of acts from prior to
November 30, 2005, the date given in the complaint, for the purpose of proving
the course of conduct element of the charge.

¶24The State counters that the complaint must be given "a common
sense reading,"[13]
that the information need not repeat facts set forth in the complaint,[14]
and that the complaint may incorporate a document,[15]
as the complaint against Conner properly did.The complaint attaches and explicitly incorporates:

1) police reports of two officers
detailing the investigation of the November 30 incident;

2) a property crime non-consent
form related to the November 30 incident, signed by the Gainors; and

3) a copy of a motion filed in
the prior case seeking to admit evidence of other acts by Conner and listing at
least 27 specific acts and specifying the date on which each is alleged to have
occurred.

¶25The test we apply is whether the complaint and information
"state[] an offense to which [the defendant] is able to plead and prepare
a defense" and "whether a conviction or acquittal is a bar to another
prosecution for the same offense."State v. Copening, 103 Wis. 2d 564, 573, 309 N.W.2d 850
(Ct. App. 1981).Of the cases in
which Wisconsin courts have had occasion to apply the Holesome test, the
challenge presented here most closely resembles those in which the alleged lack
of notice arises from the complaint's lack of specificity about when in a long
period of time the alleged crime took place.[16]

¶26The two cases that are on point[17]
involve allegations of illegal conduct that spans a period of time.In the first, State v. George, the
State had appealed the dismissal of 29 counts charging the defendant with
illegally taking bets on football and basketball games.State v. George, 69 Wis.2d92, 94-95, 230 N.W.2d253 (1975).Without giving the specific acts or when they
were committed, each of the dismissed counts alleged illegal acts that occurred
at some point during periods of time that were as long as four months.Id.
at 94-96.The court held that the
complaint satisfied neither prong of the Holesome test and upheld the
dismissal of the counts as to the notice prong on the following grounds:

[I]f the twenty-nine dismissed counts allege continuous
offenses they are faulty because they are multiplicitous.If they allege single offenses they are
faulty because they are duplicitous, vague and are not sufficient to afford the
defendant a basis to plead or prepare a defense.

Id. at 99-100.

¶27The
second case that is arguably comparable to Conner's is State v. Kaufman,
which involved two counts of a continuing violation of statutes prohibiting
welfare fraud.Kaufman, 188 Wis. 2d at
488.There the State alleged a violation
spanning the time between June 21 and September 22, 1991, and then sought to
broaden the scope of the continuing offense to include evidence from before
that period.Id. at 491-93.While the challenge in Kaufman appears
to have been to the sufficiency of the evidence, unlike Conner's challenge, the
determination of whether a continuing offense was alleged required an analysis
of the sufficiency of the charging documents, and the court's analysis alluded
to constitutional notice requirements and cited to the pages of George
that discuss Holesome.Kaufman,
180 Wis. 2d at
490, 492.The court found that the
complaint was insufficient because "the State did not allege a date from
which the continuing offense allegedly began" which made it impossible for
Kaufman to know that "she would have to prepare a defense to a continuing
violation."Id. at 492.

¶28The
complaint in Conner's case suffers from neither of the problems present in George
and Kaufman.Unlike the faulty
charging documents in George, for example, the complaint here, with its
incorporated documents, listed 27 dates on which specific acts occurred.And unlike the incomplete complaint in Kaufman,[18]
which failed to give notice of a continuing violation, the complaint against
Conner alleged a "course of conduct" and alleged that "the basis
for the complainant's charge is contained in the attached police
reports . . . , the Property Crime Non-consent Statement
signed by James Gainor and Rhonda Sugden and the factual basis contained in the
attached Motion to Introduce Evidence of Other Crimes, Wrongs or
Acts . . . [in a separate case], all of which are
incorporated into this Complaint by this reference and attachments."It is, of course, true that in a stalking
case, the acts alleged as part of the course of conduct need not be chargeable
as individual criminal offenses.SeeState v. Warbelton, 2009 WI 6, ¶36, 315 Wis. 2d 253, 759 N.W.2d 557
("[S]talking statutes criminalize what otherwise would be legitimate
behavior based upon the fact that the behavior induces fear . . . ."
(quoting Nat'l Inst. of Justice, U.S. Dep't of Justice, Project to Develop a
Model Anti-Stalking Code for States 49 (1993))).

¶29It is implicit in Conner's due process challenge that there are
necessarily difficulties in defending against allegations of this nature, and
that is true; it is equally true that it is difficult to prove them, which is
undoubtedly why so much of the alleged conduct the Gainors experienced remained
uncharged.Even so, there was evidence
in the record from prior cases that Conner admitted making calls to the Gainors
in which she did not identify herself, testimony from witnesses who knew
Conner's voice that she had been the person making the anonymous calls,
evidence that she admitted damaging another person's vehicle by severely
scratching it, testimony that video evidence had been introduced in prior cases
of Conner making calls that she had denied making, testimony from Conner
herself that she had previously lied to police when denying damaging a vehicle,
and testimony that when Conner was in jail on unrelated charges, the Gainors
had temporary relief from harassing anonymous phone calls and vandalism.In the context of this case, there was
further testimony from Conner that she had kept written records of every
occasion she saw the Gainors, including the date and location, which, if true,
would likely be admissible and would be helpful evidence for her in rebutting
untrue allegations.[19]In short, while the prosecutor might well
have worded the complaint more precisely, there was no constitutional infirmity
to the complaint as it was worded because there was no question of what
allegations Connor faced. The difficulty presented in mounting a defense here
had nothing to do with any technical wording of the complaint, which we noted
above, explicitly incorporated by reference a document listing at least 27
specific acts and specifying the date on which each is alleged to have
occurred.

¶30The second part of the Holesome test deals with the question
of double jeopardy.As noted above, in
the case from which the Holesome test was taken, there were obvious
implications for double jeopardy created by the combination of an imprecise
charging document and the expansive language of the relevant ordinance, which
included a laundry list of prohibited acts.Seesupra¶21.The statute in this case involves a
continuous crime, that of stalking, a situation that this court addressed in George.There, when applying the Holesome
test, we stated:

[U]nder the state's theory, each of the dismissed
counts charges a continuing crime. The established rule, as stated in 1 Anderson, Wharton's
Criminal Law and Procedure (1957), p. 351, sec. 145, is that[] "Only one
prosecution may be had for a continuing crime. When an offense charged consists
of a series of acts extending over a period of time, a conviction or acquittal
for a crime based on a portion of that period will bar a prosecution covering
the whole period... ."

George,
69 Wis. 2d at
97-98.

¶31In addition, as noted above, at oral argument, the State
acknowledged that a future prosecution of Conner for stalking for the same
course of conduct would violate double jeopardy protections.In Fawcett, in concluding that the
second prong of the Holesome test had been satisfied, the court noted
that "double jeopardy is [not] a realistic threat in this case," and
gave as a reason that "the state concedes that Fawcett may not again be
charged with any sexual assault growing out of this incident."Fawcett, 145 Wis.2dat 255.

¶32Because the complaint charged a course of conduct and incorporated
documents listing detailed acts along with specific dates on which they
allegedly occurred, we hold that the complaint and information stated an
offense to which Conner was "able to plead or prepare a defense," and
we concur with the State that "conviction or acquittal is a bar to another
prosecution for the same offense."Under the Holesome test, therefore, the complaint was sufficient,
and we affirm the court of appeals' decision on that issue.

B.
Statute

¶33The issue raised by Conner's second argument concerns the proper
application of Wis. Stat. § 940.32(2m)(b),
which elevates a conviction for stalking to a Class H felony under specific
circumstances, and thus subjects the convicted person to a higher penalty.Conner argues that the language of the
statute does not properly apply to the facts of this case; in other words, even
if she is guilty of violating Wis. Stat. § 940.32, the circumstances under which Wis. Stat. § 940.32(2m)(b) applies
are not present here.

¶34Those circumstances are set forth in the statute as follows:

(2m) Whoever violates sub. (2) is guilty of a Class H
felony if any of the following applies:

...

(b) The actor has a previous conviction for a crime,
the victim of that crime is the victim of the present violation of sub. (2),
and the present violation occurs within 7 years after the prior conviction.

Wis. Stat. § 940.32(2m)(b).

¶35Conner argues that Wis.
Stat. § 940.32(2m)(b)
requires that the words "present violation" be read as meaning the
current stalking violation.She contends
that when read together with the definition of "course of conduct" in
the statute,[20]
Wis. Stat. § 940.32(2m)(b)
is properly read as meaning that "a series of 2 or more acts" must
occur "within 7 years after the prior conviction."Here, Conner argues, only one act, the one
occurring on November 30, occurred after the prior conviction, and therefore,
the portion of the statute making her crime a Class H felony was not properly
applied to her.Conner further asserts
that the circuit court's improper reading of the statute led to the giving of
jury instructions that, contrary to the properly given limiting instruction,[21]
invited the jury to consider as evidence the acts that the circuit court had
initially admitted as other-acts evidence.This was so because the jury instruction given, Wisconsin Jury
Instruction--Criminal 1284, stated in part:

Acts that you may find constitute a course of conduct
are limited to: maintaining a visual or physical proximity to the victim;
approaching or confronting the victim; appearing at the victim's home or
contacting the victim's neighbors; entering property owned, leased or occupied
by the victim; contacting the victim by telephone or causing the victim's
telephone or any other person's telephone to ring repeatedly or continuously
regardless of whether a conversation ensues; photographing, videotaping,
audiotaping, or, through any other electronic means, monitoring or recording
the activities of the victim; sending material by any means to the victim, or,
for the purpose of obtaining information about, disseminating information
about, or communicacting with the victim, to a member of the victim's family or
household or an employer, coworker or friend of the victim; placing an object
on or delivering an object to property owned, leased or occupied by the victim;
causing a person to engage in any of the acts described above.

¶36In contrast, the State points to the text of the statute, which
uses the phrase "present violation" rather than the words
"course of conduct"; and the context of the statute, which explicitly
sets no time period for the acts, but rather states that they may be "carried
out over time, however short or long," and must "show a continuity of
purpose."Wis. Stat. § 940.32(1)(a), (2m)(b).The State argues that there is no support in
the statute for the requirement Conner describes.

¶37The court of appeals concisely summarized the parties' arguments on
this score as follows:

Conner contends that under the plain meaning of these
provisions, once an individual has been convicted of a crime involving the same
victim, the perpetrator must, within seven years of the prior offense, have
committed at least two subsequent acts constituting a course of conduct in
order to be subjected to the subsection's enhanced penalty.Thus, Conner argues that the acts used to
establish the crime of stalking under Wis. Stat. § 940.32(2m)(b) must be confined to acts which
occurred after her June 2003 conviction for violating the Gainors' restraining
order.The State takes the position that
under the plain meaning of these provisions, the course of conduct may include
acts that occurred prior to Conner's June 2003 conviction.

Conner, 321 Wis.2d449, ¶13.

¶38The
court of appeals examined the statute in light of this court's decision in Warbelton,
315 Wis. 2d 253.The court of appeals cited Warbelton's
discussion of the Wisconsin legislature's
decision to adopt a "statutory scheme that delineates three degrees of
stalking depending on the presence of aggravating factors." Conner,
321 Wis. 2d 449,
¶17.That statutory scheme, Warbelton
noted, followed a recommendation to state legislatures from the U.S. Department
of Justice concerning stalking statutes, encouraging them to establish a
"continuum of charges that could be used by law enforcement officials to
intervene at various stages."Warbelton,
315 Wis. 2d 253,
¶37 (quoting Nat'l Inst. of Justice, U.S. Dep't of Justice, Project to
Develop a Model Anti-Stalking Code for States 49 (1993))..The court of appeals reasoned as follows:

Conner's
interpretation of Wis. Stat. § 940.32(2m)(b) is inconsistent with the
reasoning underlying the statute. . . . [Under her
interpretation,] [t]he conviction would effectively serve to sever the continuum
of stalking behavior that could be taken into consideration in making the
charging decision, and would permit the consideration of only certain of the
acts closer in time to the present charged offense.

Conner,
321 Wis. 2d 449,
¶18.

The court of appeals concluded that "the seven year time
restriction specified in Wis. Stat. § 940.32(2m)(b) requires that only the
final act charged as part of a course of conduct occur within seven years of
the previous conviction, and does not restrict by time the other acts used to
establish the underlying course of conduct element of sub. (2)."Id.,
¶19.

¶39Statutory interpretation is a question of law which we address de
novo. Davis, 310 Wis.2d583, ¶18.As we have often recited, our approach to a
statute is one in which we focus on the text and the context of the statute:

Context is important to meaning. So, too, is the
structure of the statute in which the operative language appears. Therefore,
statutory language is interpreted in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or unreasonable
results. Statutory language is read
where possible to give reasonable effect to every word, in order to avoid
surplusage.

¶40The text and context of this statute indicate that the statutory
language does not have the meaning Conner suggests.[22]First, there is no language in the provision
itself that limits the meaning of "present violation" to a course of
conduct that occurs in its entirety only after the earlier conviction.Second, and more persuasively, the
surrounding language makes clear that the continuum of conduct—acts "carried
out over time, however short or long"—is the essence of a stalking crime;
to read the language as Conner does would result in shearing off evidence of a
course of conduct that had been continuous and was punctuated by a conviction
in 2003, which conviction was itself a part of the continuous conduct the
statute criminalizes.

¶41In this case, interpreting a statute reasonably to avoid absurd
results and giving reasonable effect to the words of the statute mean that we
must avoid a construction that, where the statute's words state explicitly
otherwise, would insulate a defendant from liability for certain acts in a
course of conduct that spans a period of time during which there has been a conviction.Where the elements of the controlling
definition of the crime in the statute have been satisfied, it would frustrate
the application of the entire statute to read into (2m)(b) a condition that
eliminates certain acts from consideration and severs a course of conduct into
what are, in effect, successive courses of conduct.In this case, it would mean that acts by
Conner that would otherwise be eligible to prove a course of conduct would be
barred from being so used when the statute explicitly states that the acts the
finder of fact may consider may span a period of time "however short or
long."

¶42Because the statute explicitly states that it applies to acts that
occur over a period of time, "however...long," and because
Conner's construction of the statute would necessarily lead to excising from
proper consideration acts in a course of conduct that the language of the
statute specifically contemplates covering, we hold that the application of
(2m)(b) was correctly applied where the "present violation" was a
course of conduct that continued through November 30, 2005.

¶43There are two further points to mention with regard to the acts
making up the course of conduct in this case.First, we reiterate that it is not necessary for us to decide the double
jeopardy question or address the second prong of the test in this case.Given the facts of this case and our
interpretation of the statute, double jeopardy concerns are not implicated by
Conner's prosecution on these stalking charges because this is not a situation
where successive identical prosecutions for stalking are being undertaken using
the same past acts to satisfy the elements of the charges.This court described the principles that
guide a double jeopardy analysis in a case we decided in the wake of U.S. v.
Dixon,509 U.S. 688 (1993), the 1993 U.S. Supreme Court decision
that retreated from Grady, a short-lived departure from the established Blockburger
test, and firmly re-established the Blockburger test:

We believe that Blockburger, and the case law
developed around it, adequately protect the interests embodied in the Double
Jeopardy Clause. Under Blockburger, the state cannot successively
prosecute a defendant for two offenses unless each offense necessarily requires
proof of an element the other does not. Neither can the state prosecute an
offense whose elements are “incorporated” into the elements of an offense
already prosecuted.Finally, the state
cannot relitigate factual issues that have already been adjudicated to the
defendant's benefit in an earlier prosecution.These protections ensure that defendants will not be forced to unfairly
“run the gauntlet” a second time for the same offense.

Of course, we recognize that the Double Jeopardy Clause's
prohibition against “successive prosecutions” protects different interests than
does its prohibition against “multiple punishments.”Still, we do not believe that these different
interests necessarily require or even recommend separate analyses. Blockburger's
emphasis on statutory elements is simple and objective. It provides defendants,
courts, and prosecutors certainty as to which offenses are the same for double
jeopardy purposes. Moreover, it is the approach that best comports with the
language of the double jeopardy clause. Blockburger is not a perfect
test, but it is better than Grady's “same conduct” approach. We hereby
follow the United States Supreme Court and adopt the analysis of Dixon and Blockburger
in double jeopardy cases involving successive prosecutions.

¶44Second, we note that the alleged acts of November 30, 2005,
themselves might well have provided a basis for the jury to find a violation of
Wis. Stat. § 940.32(2m)(b)
because under the list of acts that may constitute stalking, at least two were
alleged to have occurred on that date.A
jury that was properly instructed, as the jury was here, might therefore
reasonably have found that, looking solely to the elements of the statute and
solely to the evidence of the acts alleged on November 30, 2005, Conner had
committed "a series of two or more acts" that qualified as
stalking.Both parties acknowledged as
much at oral arguments before us.

¶45We therefore hold that the statute was properly applied to Conner
such that the conviction was for a Class H felony.

IV.
CONCLUSION

¶46A two-prong test for evaluating the sufficiency of the charge
addresses constitutionally sufficient notice and exposure to double
jeopardy.The challenge here is focused
only on the first prong, that of sufficient notice.In Wisconsin,
"[a] defendant has the benefit of both the factual allegations required in
the complaint and the final statutory charges alleged in the
information."Copening, 103 Wis. 2d at 576. It is also settled that a complaint may
appropriately incorporate other documents.We hold that by appending and incorporating into the complaint documents
listing and specifying the dates of alleged acts, both charged and uncharged,
that began in 2000 and by alleging a "course of conduct," the State
gave Conner notice of the allegations she would be required to defend against,
and therefore there was no violation of Conner's due process right to notice.

¶47As to the application of the statute's language about requiring
that "the present violation" have occurred "within seven years
after the prior conviction," we hold that it was properly applied in this
case because, in this case, the "present violation" was a continuing
course of conduct that included the acts on November 30, 2005, and that
occurred within seven years after the 2003 convictions for crimes involving the
same victim.Contrary to Conner's
assertions, the statute does not specify how many acts in that course of
conduct must take place after the prior conviction.Such a reading is at odds with the context of
the statute in which it appears, which defines stalking as acts "carried
out over time, however short or long, that show a continuity of purpose."Further, the list of acts the statute defines
as stalking conduct makes clear that even if we read the statute as Conner
suggests, the conviction in this case would still be proper because a properly
instructed jury could reasonably find that evidence showed that on November 30,
2005, Conner carried out more than one act constituting stalking behavior, and
those acts were within seven years after the 2003 conviction involving the same
victim.

¶48We therefore affirm the decision of the court of appeals.

By the Court.—The decision of the court of
appeals is affirmed.

¶49SHIRLEY S. ABRAHAMSON, C.J. (dissenting).The majority begins by providing an avalanche
of Conner's misconduct.In doing so, the
majority argues persuasively that Conner engaged in a remarkably massive series
of stalking acts.But the issue before
the court is whether the conviction for Class H felony stalking was obtained in
accordance with the statutory requirements and Conner's due process
rights.I conclude it was not.

I

¶50Wisconsin Stat.
§ 940.32(2m)(b) elevates a Class I felony stalking offense to a
Class H felony.In this case, Conner was
charged and convicted of a Class H felony.Section940.32(2m)(b)
states as follows:

(2m) Whoever violates sub. (2) [describing underlying
Class I felony offense of stalking] is guilty of a Class H felony if any of the
following applies:

. . . .

(b) The actor has a previous conviction for a crime,
the victim of that crime is the victim of the present violation of sub. (2),
and the present violation occurs within 7 years after the prior conviction
(emphasis added).

¶51The statute requires the State to establish three elements to
convict Conner of the Class H felony.

¶52First, the State must prove a violation of the stalking statute,
which includes proving that the accused engaged in a "series of 2 or more
acts carried out over time, however short or long, that show a continuity of
purpose...."Wis.
Stat. § 940.32(1)(a).

¶53Second, the State must prove that the defendant has a prior
conviction for a crime and that the victim of that prior crime is the victim of
the present violation of the stalking statute.

¶54Third, the State must prove that the present violation of the
stalking statute occurred "within 7 years after the prior
conviction."

¶55The disagreement in this case involves the third element: "the
present violation occurs within 7 years after the prior conviction."Wis.
Stat. § 940.32(2m)(b).

¶56Conner asserts that the statutes require the State to confine the
acts used to establish the present violation of the stalking offense to those
acts that occurred after her June 2003 conviction.That
is, Conner would restrict the course of conduct in the present violation to a
time period consisting of the seven years after the prior conviction involving
the same victim.

¶57In
contrast, the State asserts that the course of conduct may include acts that
occurred before Conner's June 2003 conviction of a crime.That is, the State would not restrict the
course of conduct to any time period.

¶58The majority opinion agrees with the State's statutory
interpretation, asserting that the definition of "course of conduct"
"makes clear" that the "essence" of a stalking crime is
acts carried out over time, however short or long.Majority op., ¶40.The
majority's interpretation of Wis. Stat. § 940.32(2m)(b)
places significant weight on the context provided by the plain language of the
underlying stalking offense.Majority
op., ¶44.This context is important to our
interpretation of the stalking offense.However, in relying upon the essence of the underlying stalking offense,
I believe that the majority overrides the unambiguous language of a more
specific element the legislature determined was necessary to prove a violation
of Wis. Stat. § 940.32(2m)(b),
a class H felony.

¶59As
I read the statute, Wis. Stat. § 940.32(2m)(b) delineates a specific
timeframe within which the present course of conduct must be committed: The
State must prove that the accused committed the present violation (which by
definition means two or more acts) within the seven years after the
prior conviction.My reading of
the statutory language is consistent with the text of the statute and the
legislature's intent to establish delineated degrees of conduct that punish
aggravated incidents of stalking behavior.State v. Warbelton,
2009 WI 6, ¶¶38-39, 315
Wis.2d253, 759 N.W.2d 557.The majority's interpretation of § 940.32(2m)(b), in my
view, effectively undercuts the legislatively established graduated system of
punishment for stalking.

¶60The majority opinion repeatedly states that the jury instructions
were correct.I disagree.

¶61Under my interpretation of Wis. Stat. § 940.32(2m)(b), the jury instructions given in this
case were erroneous.The jury was not
instructed to limit its consideration of acts constituting a course of conduct
to acts occurring after the prior June 30, 2003 conviction.Because of the instructions given, we do not
know which acts the jury used in finding that Conner engaged in a course of conduct.

¶62Even under the majority's interpretation of the statute, it appears
that at the very least Wis. Stat. § 940.32(2m)(b)
requires that one of the acts constituting the course of conduct in the
underlying stalking violation must occur within seven years after the
prior conviction.Nevertheless, adhering
to the jury instructions given in the present case, the jury could have relied
only upon acts occurring in 2000-2001 to establish Conner's course of conduct.This view of the jury verdict is supported by
the jury's acquittal of Conner of the charge of criminal damage to property
stemming from the November 30, 2005 incident.

¶63For the foregoing reasons, I conclude that the circuit court
improperly admitted evidence of acts that preceded Conner's conviction of June
30, 2003, for the purpose of establishing the course of conduct element of the
present stalking offense.In light of
the evidence offered in the instant case, and the jury instructions given, I can
not be sure that the jury determined that any of the acts constituting the
present course of conduct occurred after the prior 2003 conviction.Therefore, I would reverse the judgment of
conviction entered against Conner.

II

¶64I now turn to Conner's assertion that her due process right to
notice was violated.As the majority
correctly states at ¶¶20
and 21, Conner has a due process right to notice of the facts the State claims
constitute the offense charged.Due
process requires that the prosecution state an offense to which Conner is able
to plead or prepare a defense.

¶65Conner concedes that she had proper notice regarding incidents
occurring on or about November 30, 2005.The alleged facts of these incidents were detailed by police investigation
reports that the State expressly incorporated into the complaint.Conner asserts, however, that her due process
right was violated because the charging documents do not contain the time frame
for which she was prosecuted for a continuing offense.

¶66The majority opinion concludes that the complaint gave Conner
sufficient notice that the State was relying on 27 or so other incidents
occurring in 2000-2001 to prove the 2005 underlying charge of stalking.These 27 or so incidents were listed in a
motion that was attached to the complaint.The motion had been filed in another case against Conner and was a
motion seeking to admit other acts evidence against Conner.Majority op., ¶25.Citing State v.
Copening, 103 Wis. 2d 564,
309 N.W.2d 850 (Ct. App. 1981), the State asserts that evidentiary
facts are generally found in the complaint and need not appear in the
information.

¶67As
I read the complaint, it is not clear that the State was contending that Conner
had engaged in a course of conduct that spanned the years 2000 through November
2005.If that was the point of the
complaint, why did the State later in the present case move to seek admission
of these prior acts set forth in the motion attached to the complaint (as well
as later acts) as other acts evidence?The circuit court in the present case originally ruled that this
evidence of Conner's acts between 2000 and 2005 was admissible as other acts
evidence for the purpose of establishing motive.In a change of course in the waning
moments of trial, the circuit court permitted the prosecutor to use these acts
to establish the course of conduct element in the underlying stalking
offense.The number of alleged acts and
the time frame of the acts to prove the crime were thus dramatically
increased.

¶68Under these circumstances I cannot conclude that a list of acts set
forth in a motion relating to another case against Conner and relating to the
admission of other acts evidence against Conner gave Conner notice that the
State was relying on the numerous acts specified in the motion to prove the
2005 underlying charge of stalking.

¶69For the reasons set forth, I would reverse the judgment of
conviction.Accordingly, I dissent.

¶70I am authorized to state that Justice ANN WALSH BRADLEY joins this
opinion.

[2] All references to the Wisconsin Statutes are to the
2003-04 version unless otherwise indicated.

[3] Wis. Stat. § 940.32(2m)(b)
(2003-04) states, "Whoever violates sub. (2) is guilty of a Class H felony
if...[t]he actor has a
previous conviction for a crime, the victim of that crime is the victim of the
present violation of sub. (2), and the present violation occurs within 7 years
after the prior conviction."

[5] The parties agree that double
jeopardy concerns are not, at this point, implicated in this case given that
the prior convictions were for crimes other than stalking. As to future
implications, at oral argument, the State stated that Conner could not in the
future be convicted of stalking using evidence of the same acts again to
satisfy an element of the crime.It is
therefore not necessary for us to decide that question or address the second
prong of the test in this case.The
double jeopardy implications are addressed more fully infra ¶¶30-31 and
¶43.

(a) “Course of conduct” means a series of 2 or
more acts carried out over time, however short or long, that show a continuity
of purpose, including any of the following:

1. Maintaining a visual or physical proximity
to the victim.

2. Approaching or confronting the victim.

3. Appearing at the victim's workplace or
contacting the victim's employer or coworkers.

4. Appearing at the victim's home or contacting
the victim's neighbors.

5. Entering property owned, leased, or occupied
by the victim.

6. Contacting the victim by telephone or
causing the victim's telephone or any other person's telephone to ring
repeatedly or continuously, regardless of whether a conversation ensues.

6m. Photographing, videotaping, audiotaping,
or, through any other electronic means, monitoring or recording the activities
of the victim. This subdivision applies regardless of where the act occurs.

7. Sending material by any means to the victim
or, for the purpose of obtaining information about, disseminating information
about, or communicating with the victim, to a member of the victim's family or
household or an employer, coworker, or friend of the victim.

8. Placing an object on or delivering an object
to property owned, leased, or occupied by the victim.

9. Delivering an object to a member of the
victim's family or household or an employer, coworker, or friend of the victim
or placing an object on, or delivering an object to, property owned, leased, or
occupied by such a person with the intent that the object be delivered to the
victim.

10. Causing a person to engage in any of the
acts described in subds. 1. to 9.

[10]The jury instruction
regarding this evidence stated that it was for the purpose of identity; Conner
did not object to the jury instruction, so we need not address the reason for
any apparent discrepancy between the reason given by the court in ruling on the
motion and the subsequently given jury instruction.

[11] The relevant portion of this statute provides,
"Except as provided in par. (b), evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show that the
person acted in conformity therewith. This subsection does not exclude the
evidence when offered for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident."Wis.
Stat. § 904.04(2)(a) (2005-06).

[12]Her other related
challenge, that it was improper for the State to be allowed to use the 2003
convictions themselves to satisfy the course of conduct element because the
"present violation" must have occurred after the previous conviction,
implicates the application of the statute addressed in the second part of the
analysis, seeinfra Part III.B.

[17]Because the cases that
involve allegations of sexual assault of a child implicate considerations not
relevant to this case, we do not look to the reasoning of those cases as to the
notice prong of the test.See, e.g.,
Fawcett, 145 Wis.2dat 254 ("In a case
involving a child victim...a more flexible
application of notice requirements is required and permitted.The vagaries of a child's memory more
properly go to the credibility of the witness and the weight of the testimony,
rather than to the legality of the prosecution in the first instance.").

[18] Indeed, the Kaufman
court contrasted the attempt to improperly expand the prosecution with a
complaint in another welfare fraud prosecution, John v. State, 96 Wis. 2d 183,
291 N.W.2d 502 (1980), that did not run afoul of notice requirements.Kaufman, 188 Wis. 2d at 493.In John, the charged violation was
alleged to have occurred from April 1, 1972, through June 30, 1977, and the
complaint specifically included the time prior to the charged violation, in
1970, when the child falsely being claimed as a household member had actually
moved elsewhere.John, 96 Wis. 2d at 186.The complaint filed here, like the one in John,
omitted none of the necessary dates required to give the defendant notice of
the allegations.

[19]In applying the Holesome
test in a case involving allegations of child sexual assault during treatment
sessions with a therapist, the court acknowledged "the problem of dimmed
memories and the possibility that the defendant may not be able to sufficiently
recall or reconstruct the history regarding the allegations"; it thus
found it relevant under the facts of that case that the defendant, as the
victim's therapist, "had the benefit of his own notes and records
documenting the dates of his treatment sessions with [the victim]." Miller, 257 Wis.2d124, ¶35.

[20] Wis. Stat. § 940.32(1)(a)
states, "In this section[] 'Course of conduct' means a series of 2 or more
acts carried out over time, however short or long, that show a continuity of
purpose . . . ."

[21]The jury was given the
following limiting instruction:"Evidence has been presented regarding other conduct of the defendant
for which the defendant is not on trial.Specifically, evidence has been presented that the defendant
intentionally caused damage to an automobile owned by Joy Stolz by scratching
the paint with a sharp object.If you
find that this conduct did occur, you should consider it only on the issue of
identity.You may not consider this
evidence to conclude that the defendant has a certain character or a certain
character trait and that the defendant acted in conformity with that trait or
character with respect to the offense charged in this case."

[22]The court of appeals
took a slightly different path to its conclusion, initially deciding that Wis.
Stat. § 940.32(2m)(b)
is ambiguous and proceeding to consider evidence of legislative intent.Conner, 321 Wis. 2d 449,¶¶16-17.Because we find that the meaning of the
statute's text is plain in its context, we need not take that path.